Indigenous who qualifies

11 April 2016

N.M. Willsmer, Harare

Who qualifies as an “Indigenous Zimbabwean”?

The question of who qualifies as an “indigenous Zimbabwean” for the purposes of the indigenisation legislation cannot be easily answered, if at all, because of the poor way in which “indigenous Zimbabwean” was defined in the Act.

Section 2 of the Act defines “indigenous Zimbabwean” as “any person who, before the 18th April, 1980, was disadvantaged by unfair discrimination on the grounds of his or her race, and any descendant of such person, and includes any company, association, syndicate or partnership of which indigenous Zimbabweans form the majority of the members or hold the controlling interest.”

The fact that the definition of “indigenous Zimbabwean” speaks of “any person”, as opposed to “any person of black African descent” or some other term that qualifies “person” by reference to his or her race, means that “any person” must be interpreted as “any person of any race or colour”.

Support for this approach is found in the judgment of the High Court in Naval Phase Farming (Pvt) Ltd and Others v the Minister of Lands and Rural Resettlement HH 768-15 at page 18, where it was stated that the Applicants’ papers were permeated with an unfortunate equation of the perceived meaning of “indigenous Zimbabweans” with Zimbabweans of black African descent.

That judgment relied in part on the judgment of the Supreme Court in Campbell (Pvt) Ltd and Another v the Minister of National Security Responsible for Land, Land Reform and Resettlement and Another SC 49-07 at pages 16 to  17, where it was stated that the provisions of section 16B (2) (a) (i) of the Constitution and the acquisitions of the pieces of agricultural land which resulted from its operation had no reference at all to the race or colour of the owners of the pieces of land acquired.

The poorly-drafted definition of “indigenous Zimbabwean” does not say that the person who was disadvantaged before the 18th April 1980 must be either indigenous or a Zimbabwean person or perhaps even that that person must have been disadvantaged by unfair discrimination occurring in Zimbabwe.  These might at first appear to be necessary qualifications but they are not stated to be such, and a Court might well hold that “any person” cannot be interpreted to mean “any indigenous Zimbabwean person”.

The definition of “indigenous Zimbabwean” could perhaps even allow a Maori who suffered unfair discrimination in New Zealand prior to the 18th April 1980 as a result of his or her race to qualify as an “indigenous Zimbabwean”.

The definition of “indigenous Zimbabwean” and the general application of the indigenisation legislation are not restricted (as they could have been) by references to citizenship of or residence in Zimbabwe, as was the case with the Immovable Property (Prevention of Discrimination) Act number 19 of 1982: see section 5(3) of that Act.

Nor is the definition of “indigenous Zimbabwean” approached (as it could have been) in a manner similar to that adopted in producing the following definition of “African” in the Interpretation Act:

“(a) any member of the aboriginal tribes or races of Africa and the islands adjacent thereto, including Madagascar and Zanzibar; or
“(b) any person who has the blood of such tribes or races and who lives as a member of an aboriginal native community.”

It is doubtful whether the words “any person” would be interpreted by a Court to mean “any Zimbabwean–born person”, “any person whose tribe or race is found naturally in Zimbabwe” or “any Zimbabwean citizen”, and perhaps even whether the word “disadvantaged” would be interpreted by a Court to mean “disadvantaged in Zimbabwe”.

Even though the word “indigenous” does not appear in the definition of “indigenous Zimbabwean” and is not defined in the legislation, its ordinary meaning is now considered:

The Concise Oxford Dictionary defines “indigenous” as “born or (especially of flora and fauna) produced naturally in a region; belonging naturally (to soil etc., or figuratively).”

There is no question, of course, that black persons who were born in Zimbabwe would qualify as indigenous Zimbabweans.  Were they born in Zimbabwe naturally, however?  Given the various population group shifts that have occurred in Zimbabwe (as in the rest of the world) over recent centuries, can it be said that any group of persons is born naturally in Zimbabwe?  What about persons of mixed race or other races who were born in Zimbabwe?   Should any weight be given to the word “naturally”? Probably not.

The then Minister of Youth Development, Indigenisation and Economic Empowerment, Minister Mangwana, told Parliament on the 26th September 2007 that an indigenous person meant “any person who is in Zimbabwe – even if he is an Aborigine or an Eskimo.  If an Eskimo was in Zimbabwe and was discriminated (against) by the colonial regime, he qualifies to be an indigenous person.  Even an Indian, if he can prove that he was disadvantaged, he qualifies to be an indigenous Zimbabwean.  Once you start using terms like black and white, you are being racist and you will be breaching the Constitution of Zimbabwe.” (The underlining has been added.) It is understood that he also stated at a seminar that Greek Zimbabweans were a previously disadvantaged group.

He may have been incorrect in saying that the person in question had to be in Zimbabwe when he or she was disadvantaged by discrimination. He was correct in saying that Greek Zimbabweans had previously been disadvantaged by discrimination, for the reasons given below.

Ms Judith Todd was reported in the Independent newspaper of the 11th March 2010 as saying that all persons living in Zimbabwe up to the 18th April 1980, irrespective of their race, were disadvantaged by unfair discrimination. This was very probably an overstatement of the position.

The Chairman of the National Indigenisation and Economic Empowerment Fund, Mr Chapfika, was reported in the Herald newspaper of the 20th March 2010 as saying that most such disadvantaged persons were blacks: he accepted that some whites would qualify as disadvantaged persons, however. This was a correct statement of the position.

The Chairman later changed his mind and was reported in the Newsday newspaper of the 2nd September 2010 and the Mail & Guardian newspaper of the 11th March 2011 as saying that the retail sector was reserved for black indigenous Zimbabweans, not black persons from elsewhere in Africa.  This was an incorrect statement of the position.

The next Minister, Minister Kasukuwere, was reported in the Zimbabwean newspaper of the 10th February 2011 and the Daily News newspaper of the 23rd March 2012 as saying that the indigenisation programme should benefit people with black skin only.  This, too, was an incorrect statement of the position.

The current Minister, Minister Zhuwao, was reported in the Financial Gazette newspaper of the 12th November 2015 as saying that the indigenization legislation seeks to give black people an advantage over white people, which is partially inaccurate: it seeks to give indigenous people an advantage over non-indigenous people, which is not quite the same thing.

Various other politicians and commentators over the years have continued to express the incorrect view that a person must be black to have been disadvantaged by unfair discrimination.

The numerous references to “foreigners” and “locals” in various speeches and interviews that have been given and various articles that have been printed in newspapers, reflecting all sides of the political spectrum, have been unhelpful.

As stated above, the term “indigenous Zimbabwean” is misleading because a person who qualifies as an “indigenous Zimbabwean” may not need to be either indigenous or Zimbabwean (whatever these terms are interpreted to mean).

This is the case not only because the Act’s definition of “indigenous Zimbabwean” fails expressly to require a qualifying person (or his or her descendants) to have been either “indigenous” or “Zimbabwean” but also because a large number of non-indigenous and non-Zimbabwean persons (and their descendants) qualify as having been unfairly disadvantaged before the 18th April 1980 on the grounds of their race in the wider sense of their nationality.

This discrimination arose from the provisions of the (Rhodesian) Aliens Act number 32 of 1946, the (Federal) Aliens (Registration and Status) Act number 34 of 1954 and the  (Rhodesian) Aliens Act number 45 of 1966 (later, Chapter 22). The last of these three Acts was repealed by Act 18 of 1979. When in force, each of these three Acts discriminated against various classes of non-black persons before the 18th April 1980.

This discrimination would today undoubtedly be held to be unfair.

For example, the Aliens Act number 32 of 1946 said “alien” meant “any person who is not a British subject, a British protected person or a citizen of Eire, but does not include a native”; it required aliens to carry identity cards (on pain of arrest and imprisonment), to notify their residential addresses and to keep their existing surnames; and it forbade them from being employed in the public service or the defence forces.

The Aliens (Registration and Status) Act number 34 of 1954 and the Aliens Act number 45 of 1966 (later, Chapter 22) extended the definition of “alien” and repeated the above-quoted identity card and surname requirements.

The persons affected by the legislation governing aliens did not suffer discrimination because of their race in the sense of their membership of “a group connected by common descent” or “a tribe regarded as of common stock” but they did suffer discrimination because of their race in the sense of their membership of “a nation regarded as of common stock.” These definitions all appear in the Concise Oxford Dictionary. The word “race” and “racial” are terms of wide import, as the South African case-law reflects.

It should be noted that the above (now-repealed) legislation governing aliens constituted legislated discrimination. This may not be the only type of discrimination envisaged by the definition in the Act, which might be interpreted by the Courts so as also to enable persons who have suffered unfair non-legislated discrimination to qualify as “indigenous Zimbabweans” (sic): this seems unlikely, however.

In order to qualify as an indigenous Zimbabwean, a person (or his or her ancestor) is apparently required by the definition in the Act to have actually been disadvantaged by unfair discrimination on the grounds of his or her race. Legislated discrimination would suffice, as stated above, but mere potential disadvantage, as opposed to actual disadvantage, would probably be insufficient.

It follows that for a company, association, syndicate or partnership to qualify as an indigenous Zimbabwean a majority of its members (or their ancestors) must apparently also have actually been disadvantaged by unfair racial discrimination, not merely potentially disadvantaged.

The fact that a company, association, syndicate or partnership of which indigenous Zimbabweans hold merely the controlling interest (as opposed to their constituting a majority of members) is also defined as an indigenous Zimbabwean means that an entity which has a majority of non-indigenous persons as its members but is nevertheless controlled by an indigenous minority will also qualify as an indigenous Zimbabwean.

A Court would probably hold that a number of white male residents of Zimbabwe were disadvantaged by unfair discrimination prior to the 18th April 1980 on the grounds of their race as a result of their compulsory conscription into military service, which caused significant disruptions in their lives and their incomes.

The provisions of the Defence Act number 27 of 1972 and the National Service Acts numbers 35 of 1976 and 19 of 1979 need to be considered in this regard.

The Defence Act number 27 of 1972 required the conscription of “residents”, who were defined in section 2 of the Act in terms that excluded “Africans”.  This definition of resident was repealed in its entirety by section 35 (a) (i) A of the National Service Act number 35 of 1976, section 2 of which now defined “resident” as “an African, other than an African who is a member of a class prescribed for the purpose of this definition.”  That National Service Act was repealed and replaced by the National Service Act number 19 of 1979, section 3 of which defined “resident” in terms which no longer excluded “Africans”: in other words, a non-white male resident now qualified for conscription.

As a result, during the period of around 4 years extending from the 3rd November 1972, when the Defence Act number 27 of 1972 was brought into operation, until the 10th September 1976, when the National Service Act number 35 of 1976 came into operation, all white male residents  ?  but no African male residents  ?  were liable for conscription.

In addition, during the subsequent period of around 3 years extending to the 1st January 1980, when the National Service Act number 35 of 1976 was repealed and replaced by the National Service Act number 19 of 1979, all white male residents and only some African male residents were liable for conscription.

This means that all white male residents who were compulsorily conscripted during the 7 year period in question were disadvantaged by reason of their race and so they and their descendants therefore qualify as indigenous Zimbabweans.

The restrictions imposed by sections 9 and 9A of the Regulations in relation to the businesses that are listed in the Third Schedule as being “reserved against foreign investment (and) in favour of indigenous Zimbabweans” do not apply, of course, to “indigenous Zimbabweans.”

The National Indigenisation and Economic Empowerment Board adopts the following approach:

1. The term “indigenous Zimbabwean” in section 9A of the     Regulations (but not in other sections of the Regulations) is interpreted so as to include local persons of all races;

(a)  who are Zimbabwean citizens, or
(b)  who have proof of permanent residence in Zimbabwe (subject to certain reservations in relation to foreign investors).

2. Zimbabwean citizenship can be established by reference to a person’s national registration/identity card and if its number includes the letters “CIT”, the holder is accepted as being a Zimbabwean citizen.

3. Permanent residence in Zimbabwe can be established by reference to such documentation as is produced by the person in question and in the  light of the results of the Board’s discussions with various authorities regarding the reasons for and the period of the person’s residence in Zimbabwe.

4. Indigenisation compliance certificates are issued in terms of section 9A of the Regulations to businesses which commenced operating in a Reserved Sector on or after the 1st March 2010 and are 51% ?  owned by indigenous Zimbabweans who are     accepted as such on the basis of what is outlined above.

5. It expects that the Regulations will in due course be amended in order to apply section 9A of the Regulations also to all businesses which commenced operating in a Reserved Sector prior to the 1st March 2010.

6. It also expects that the Regulations will in due course be amended so as to require all businesses, whether or not they are operating in a Reserved Sector, to obtain indigenisation  compliance certificates.

The Board’s interpretation of the term “indigenous Zimbabwean” would appear to be a sensible one  ?  but for the fact that is not in accord with the definition in section 2 of the Act, because it does not require the Zimbabwean citizens or residents in question to have been disadvantaged by racial discrimination, so it is an incorrect interpretation.  There cannot be two different interpretations.

To sum up, a Court might well interpret “indigenous Zimbabwean” to mean “any person of any race or nationality who, before the 18th April 1980, was actually (as opposed to potentially) disadvantaged by unfair legislated discrimination whilst in Zimbabwe, together with any descendant of such a person, and includes any company, association, syndicate or partnership of which such persons form the majority of the members thereof or hold a controlling interest therein.”

If so, white persons in Zimbabwe who were disadvantaged by the aforesaid legislation relating to aliens and/or conscription, together with their descendants, would qualify as indigenous Zimbabweans.

N.M. Willsmer
11th April 2016

Mr Willsmer is a Harare-based lawyer who has written previously on the indigenisation legislation